Department of Legal Studies and Business Ethics, The Wharton School, University of Pennsylvania

Date Written: September 14, 2014

Abstract

In the paradigmatic case of conscientious objection, the objector claims that his religion forbids him from actively participating in a wrong (e.g., by fighting in a war). In the religious challenges to the Affordable Care Act's employer mandate, on the other hand, employers claim that their religious convictions forbid them from merely subsidizing insurance through which their employees might commit a wrong (e.g., by using contraception). The understanding of complicity underpinning these challenges is vastly more expansive than what standard legal doctrine or moral theory contemplates. Courts routinely reject claims of conscientious objection to taxes that fund military initiatives, or to university fees that support abortion services. In Hobby Lobby, however, the Supreme Court took the corporate owners' complicity claim at its word: the mere fact that Hobby Lobby believed that it would be complicit, no matter how idiosyncratic its belief, sufficed to qualify it for an exemption. In this way, the Court made elements of an employee's healthcare package the "boss's business" (to borrow from the title of the Democrats' proposed bill overturning the Hobby Lobby decision).

Much of the critical reaction to Hobby Lobby focuses on the issue of corporate rights of religious freedom. Yet this issue is a red herring. The deeper concerns Hobby Lobby raises – about whether employers may now refuse, on religious grounds, to subsidize other forms of health coverage (e.g., blood transfusions or vaccinations) or to serve customers whose lifestyles they deplore (e.g., gays and lesbians) – do not turn on the organizational form the employer has adopted. Instead, the more significant issue goes to our understanding of complicity: When is it reasonable for an employer (for-profit or non-profit, corporate or individual) to think itself complicit in the conduct of its employees or customers? And when is a reasonable claim of complicity compelling enough to warrant an accommodation, especially where that accommodation would impose costs on third parties?

Hobby Lobby does not provide the proper guidance for answering these questions, and no wonder: As I aim to argue here, the conception of complicity pervading the treatment of conscientious objection in the law is murky and misleading, and it often yields unjust results. This Article seeks to offer the guidance that the doctrine does not. To that end, it exposes the flaws in the understandings of complicity evident in both the majority and dissenting opinions in Hobby Lobby, as well as in RFRA cases more generally. It then seeks to disaggregate the elements in a complicity claim and to identify which of these deserve to be treated deferentially.

Deference, however, is not decisive. The Article’s second ambition is to expose a glaring oversight in the law's treatment of conscientious objection – viz., its failure to inquire into how a religious accommodation will affect third parties. Exemption opponents contend that the law already requires this inquiry. They are wrong. I end the Article by proposing a revised balancing test – one that reflects a far more nuanced grasp of what is at stake for the objector while yielding far more just outcomes for third parties.

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